“It is evident that article 99 of our Constitution must be updated in accordance with the new parliamentary reality. Citizens must never again suffer the threat of a new electoral repetition”. The phrase was pronounced by Pedro Sánchez in July 2019 during the investiture debate, after which he became, for the first time, president democratically elected at the polls. Four years later, the debate is still open because the reform of the aforementioned precept was never addressed. Because there was a pandemic, because a volcano erupted, because a war broke out or because extreme political polarization blinded any attempt to reach an agreement, the fact is that the same issue returns to the center of public debate.
This is what 99.1 of the Spanish Constitution says:
1. After each renewal of the Congress of Deputies, and in the other constitutional cases in which it proceeds, the King, after consulting with the representatives designated by the political groups with parliamentary representation, and through the President of the Congress, will propose a candidate to the Presidency of the Government.
2. The candidate proposed in accordance with the provisions of the previous section will present to the Congress of Deputies the political program of the Government that he intends to form and will request the confidence of the Chamber.
3. If the Congress of Deputies, by the vote of the absolute majority of its members, gives its confidence to said candidate, the King will name him President. If said majority is not reached, the same proposal will be submitted to a new vote forty-eight hours after the previous one, and trust will be deemed granted if a simple majority is obtained.
4. If, after the aforementioned votes, trust is not granted for the investiture, successive proposals will be processed in the manner provided in the previous sections.
5. If after the period of two months, from the first investiture vote, no candidate has obtained the confidence of Congress, the King will dissolve both Chambers and call new elections with the endorsement of the President of Congress.
Felipe VI returns to the scene at another time of institutional uncertainty, since the candidate on the list with the most votes –Alberto Núñez Feijóo– will not have the necessary support to be invested and the second most voted –Pedro Sánchez– has not given signs still that he has them, although he hopes to gather them. The controversy is served and Felipe VI, in the middle, without a clear answer to the question about what the head of state should do if Feijóo and Sánchez maintain the pulse for both going to the investiture.
There are interpretations for all tastes and colors. From politicians, analysts, constitutionalists, political scientists… In this country, giving an opinion is free and even more so when the Constitution leaves room for it. In any case, before answering that question in the environment, he flies over what Feijóo’s true objective is when he appears at that investiture for which he will not have enough support.
The PP officialdom maintains that it will do so if the king requests it, for Spain and because it has won the 23J elections. The first conditional is already built on a vision rather than on the part because the head of state proposes, but does not dispose, so nothing can be asked of him. If he did, he would be setting the political scene, something he is not constitutionally entitled to.
And this in addition to what also hides the decision to go to an investiture fake It is not to start the so-called democracy clock, as Sánchez did in 2016 in the face of an unprecedented situation of institutional blockade and successive repetitions of elections, but rather to narrow the margin for the PSOE candidate so that the negotiation with the independentistas is bounded in time by way of facts. The feint places Sánchez before the dilemma of going to the first round of consultations with the king with the necessary support or letting Feijóo fail and then accelerating the negotiation to have it ready before the two-month period constitutionally established by the Magna Carta in 99.5 from the first failed investiture vote for the king to dissolve both Chambers and call new elections.
The expression “prior consultation” that appears in 99.1 of the Constitution means, for some experts, that the king listens to the applicants but in no case invites them to take the initiative. The decision is made based on whether the interlocutor tells him if he has enough votes or not. And here the doubt that he flies over in political circles since the investiture was known fake of Feijóo. Only if Sánchez reached that round with the head of state without the necessary support –just like Feijóo–, Felipe VI would have to accept Feijóo’s request for having been the most voted candidate.
But there is no consensus on that either, since the results have configured a complex situation: the party with the most votes is the PP (136 deputies), but by adding its forces with that of its possible partners (Vox and UPN), it would add 170 votes and would not reach the absolute majority of 176 deputies. The PSOE, which obtained fewer seats (122), would add with Sumar, ERC, Bildu, PNV, BNG, 172 supports. Two more than Feijóo, as long as Coalición Canaria and Junts abstained and did not add their vote to that of the PP. In that case, the head of state “should choose between the candidate with the most support and not the one with the most votes,” they say in the socialist ranks.
This would be, of course, in the event that both candidates want to propose themselves in the first round, a mystery that is not yet clear.
Beyond what appears in article 99, the Constitution must be interpreted systematically, in the opinion of a Cortes lawyer, for whom the king should be guided by the possibility of obtaining “the majority of votes in the House”, and not by the most voted list However, in 2016, Felipe VI proposed the candidate with the most seats, a precedent that now, in the opinion of other jurists, “forces him to do the same so that the two months prior to the dissolution of Cortes established by the law begin to count.” Constitution to count from the day of a first failed investiture”.
The only date marked in red on the calendar is August 17, when the Cortes Generales are constituted. And once the Congress of Deputies elects its president and the Board of the Chamber, the head of state can now begin the round of consultations with the spokespersons designated by the parliamentary groups to propose, always through the presidency of Congress, the investiture candidate. Of course, the date of the investiture session is the responsibility of the president of Congress and if the PSOE maintains control of the Chamber, as planned, it will also be able to play with the times that Feijóo intends to control with his investiture fake to narrow Sánchez’s margin with the Catalan separatists of Junts, whose abstention is necessary for him to be invested.
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